RISK ASSESSMENT

The growth peak has been passed

Although Poland is expected to record a solid growth rate in 2018, it will likely be a slower expansion than that of 2017. A rebound of investments experienced last year was gradual. This has so far been predominantly fuelled by higher public investments, especially at the municipal level.

Household consumption remains the main growth driver, thanks to the buoyant labour market. The unemployment rate is the lowest in 27 years, wages are set to keep growing at fair rates, the central bank’s rate is at its lowest point in history, and consumer sentiment indicators have broken new heights. Exports (automobiles, machines, white goods, consumer electronics, food and furniture) are expected to benefit from the continued recovery in global trade and higher demand in the country’s leading markets (Eurozone countries). However, as imports – driven by increased consumption – will increase faster than exports, the contribution from foreign trade to growth is likely to be negative.

Although the labour market situation is beneficial for households, companies have perceived it as a constraint. Labour shortages have become a barrier in current business activity and its further expansion, and have been reported by an increasing number of companies across all sectors. A lack of workforce is especially evident in the construction sector, which means that its gradual recovery is likely to be limited. The tightness of the labour market will continue to affect businesses in Poland, and it remains one of factors making a further boost of growth impossible. In addition, the insolvency law enacted in 2016 has favoured the increase in business insolvencies in 2017.

Social measures are expected to widen the budget deficit

After having narrowed to 2.4% in 2016 – its lowest level since 2007 – the general government deficit has remained stable in 2017, supported by reduced investment activity of public entities in a period of switching to a current EU financial perspective. Although improved tax collection has brought sizeable and positive effects to the Polish budget balance, this has been offset by costly social measures, such as child benefits and the lowering of the statutory retirement age in 2017. An extension of higher VAT rates’ validity has generated additional revenues, but the government is likely to look to implement further measures. The introduction of the retail distribution tax, revised downwards under pressure from the European Commission, was initially delayed until 2018 and then to 2019. The government has also expressed intent to abolish the upper limit on pension contributions and therefore increase revenues of the Social Security Fund. Nevertheless, the public deficit is not likely to break the 3% threshold, and avoiding falling within the remit of the European Excessive Deficit Procedure remains a priority.

Deterioration of the political and social situation

The conservative Law and Justice (PiS) party won a majority of seats in the Sejm (the lower house of Polish parliament) in the legislative elections of October 2015, with 37.6% of votes, ahead of Civic Platform, the main opposition party. Its leader, Jarosław Kaczyński, gave the post of Prime Minister to Beata Szydło – moderate in image, but with significant influence over the government agenda. Since taking office, the PiS conducted a series of disputable reforms that have undermined the country’s democratic institutions and worsened the relationship with the EU. The European Commission has triggered Article 7 of the Union Treaty which could provide for the suspension of certain rights, including the right to vote, in case of a clear risk of serious violation of the rule of law. Such actions have also generated social discontent within segments of the population, and have polarized public opinion. In December 2017 Deputy Prime Minister Mateusz Morawiecki, who had been in charge of finance and development policy, was nominated to become the Prime Minister, replacing Beata Szydło. The switch has not yet resulted in a change of political or economic course of the government.

Although the current government has successful achieved a higher collectability of taxes, the political climate is relatively gloomy. It has contributed to a higher level of uncertainty compared to previous years, and has also affected investors’ attitudes. On the other hand, stable fundamentals, the Polish integration into Western European chains, and attractive yields have convinced foreign entities to not withdraw their investments from Poland. Nevertheless, the increased volatility of exchange rates confirmed that political instability and policy deterioration have worsened the external perception of Poland.

Last update : January 2018

Payment

Standard bills of exchange and cheques are not widely used, as they must meet a number of formal issuing requirements in order to be valid. Nevertheless, for dishonoured or contested bills and cheques, creditors may resort to fast-track procedures resulting in an injunction to pay.

There is, however, one type of bill of exchange that is commonly used - the weksel in blanco. This is an incomplete promissory note bearing only the term “weksel” and the issuer’s signature at the time of issue. The signature constitutes an irrevocable promise to pay and this undertaking is enforceable upon completion of the promissory note (with the amount, place and date of payment), in accordance with a prior agreement made between the issuer and the beneficiary. Weksels in blanco are widely used, as they also constitute a guarantee of payment in commercial agreements and the rescheduling of payments.

Cash payments were commonly used in Poland by individuals and firms alike, but under the 2004 Freedom of Business Activity Act (Ustawa o swobodzie działalności gospodarczej), companies are required to make settlements via bank accounts for any transaction exceeding the equivalent in złotys of EUR 15,000, even when payable in several instalments. This measure has been introduced to combat fraudulent money laundering.

Bank transfers have become the most widely used payment method. Since phases of privatisation and consolidation, leading Polish banks now use the SWIFT network, which offers a cost effective, fast and flexible solution for the transfer of domestic and international funds.

Debt collection

Amicable proceedings

Amicable debt collection is the first step of the debt recovery procedure in Poland. These actions include reminders or/and demands for payment. These communications usually serve to obtain repayment of outstanding debt, to warn the debtor of further official actions, to obtain acknowledgment of the debt, to conclude an agreement between the creditor and the debtor based on the acknowledgment of its debt and to obtain a commitment to the repayment agreed.

As since 2004, interest can be claimed as from the 31st day following delivery of the product or service, even where the parties have agreed to longer payment terms. The legal interest rate will apply from the 31st day until the contractual payment date. Thereafter, in the case of late payments, the tax penalty rate will apply. This is very often greater than the legal interest rate, unless the contracting parties have agreed on a higher interest rate.

A bill to implement the 2011/7/EU directive of 2011 on “combating late payment in commercial transactions” provides the contracting parties with maximum payment terms of 60 days. Similarly, default interest is due the day after the deadline, without the need for a formal notice.

By implementing the EU Directive, Poland introduced new rules regarding compensation for payment defaults in commercial transactions. These rules oblige debtors to pay the costs of recovery when the payment term expires. The defined amount is a lump sum of 40 euros – but it is possible to demand a larger amount if the costs of recovery prove to be higher.

Legal proceedings

Fast-track proceedings

Creditors can seek an injunction to pay (nakaz zaplaty) via a fast-track and less expensive procedure, provided they can produce positive proof of debt (such as unpaid bills of exchange, unpaid cheques, weksels in blanco, or other acknowledgements of debt). If the judge is not convinced of the substance of the claim – a decision he alone is empowered to make – he may refer the case to full trial.

As since 2010, the district court of Lublin has jurisdiction throughout Poland to handle electronic injunctions to pay when claims are indisputable. The clerk of the court examines the merits of the application, to which is attached the list of the available evidence. He then, using an electronic signature, validates the ruling granting the injunction to pay. This procedure appears, at first glance, to be fast, economic and flexible, but in reality the sheer number of cases mean that this process can be slow and drawn out.

Ordinary proceedings

Ordinary proceedings are partly written and partly oral. The parties file submissions accompanied by all supporting case documents (original or certified copies). Oral pleadings, with the litigants, their lawyers and their witnesses are heard on the main hearing date. During these proceedings the judge is required, as far as possible, to attempt conciliation between the parties.

Standard court procedures can be also fast and effective when the creditor can provide documents which clearly show the amount of debt and the confirmation of delivery of goods (or proper performance of services), especially if the documents have been signed by the debtor.

The court issues an order for payment which states that the debtor should pay the amount of the debt in two weeks, or return a written argument within the same period of time. However, in standard procedures, it is quite easy for the defendant to postpone the case. When the defendant argues the order of payment during this kind of procedure, it can take a long time to obtain the final verdict, due to the lack of judges and large backlog of cases.

Enforcement of a legal decision

When all appeal venues have been exhausted, a judgment becomes final and enforceable. If the debtor does not comply with the judgment, the creditor can request that the court orders a compulsory enforcement mechanism of the decision, through a bailiff.

For foreign awards rendered in an EU country, specific enforcement mechanisms such as the EU Payment order or the European Enforcement Order can be used for undisputed claims. Awards rendered in non-EU countries are recognised and enforced, provided that the issuing country is party to a bilateral or multilateral agreement with Poland.

Insolvency proceedings

Restructuring proceedings

The 2015 reform on polish insolvency law introduced four new types of restructuring proceedings which aim to avoid the bankruptcy of insolvent or distressed businesses. The “arrangement approval proceedings” is available to debtors who are able to reach an arrangement with the majority of creditors without court involvement and where the sum of the disputed debt does not exceed 15% of total claims. The debtor will continue to manage its estate but it will be required to appoint a supervisor, who will prepare a restructuring plan. The creditors approve the proposal through a vote.

The second type of restructuring proceedings is the Accelerated arrangement proceedings. These are also available if the sum of the disputed debt does not exceed 15% of total claims. The procedure is simplified in relation to the allowance of claims carrying voting rights. Creditors can only make reservations via a list of claims prepared by the court supervisor or administrator. The debtor’s estate will continue to be managed by the debtor-in-possession, but a court supervisor will be appointed to supervise its management.

The “standards arrangement” proceeding is available for disputed debts exceeding 15% of the total claim. With these proceedings, the court secures the debtor’s estate by appointing a temporary court supervisor.

Finally, “remedial” proceedings offer the broadest restructuring options and scope of protection of the debtor’s assets against creditors. The appointment of an administrator to manage the debtor’s estate is mandatory.

Bankruptcy proceedings

Bankruptcy proceedings can only be declared when a debtor has become “insolvent”. There are two test of insolvency - the liquidity test and the balance sheet test. Both aim to liquidate the estate of the bankrupt company and distribute the proceeds among its debtors. The entire procedure is court-driven, although the 2015 reform has given creditors holding major claims a right to influence the choice of (or a change to) the court-appointed trustee.